Guarino v. Colvin

Filing 14

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 8 Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 11 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/22/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL JOSEPH GUARINO, III,
Plaintiff,
-vs-

No. 1:14-CV-00598 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented

by

counsel,

Michael

Joseph

Guarino,

III

(“plaintiff”) brings this action pursuant to Title II of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his application for disability insurance benefits (“DIB”). The
Court has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the parties’ cross-motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules

of

Civil

Procedure.

For

the

reasons

discussed

below,

plaintiff’s motion is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.
II.

Procedural History
The record reveals that in November May 2011, plaintiff (d/o/b

February 6, 1958) applied for DIB, alleging disability as of
December

2006.

After

his

application

was

denied,

plaintiff

requested a hearing, which was held before administrative law judge
Curtis Axelsen (“the ALJ”) on February 13, 2013. The ALJ issued an

unfavorable decision on February 28, 2013. The Appeals Council
denied review of that decision and this timely action followed.
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2010.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§ 404.1520, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since December 13, 2006, the alleged
onset date. At step two, the ALJ found that plaintiff suffered from
right shoulder degenerative joint disease status post two right
shoulder surgeries, impairments which the ALJ considered severe. At
step three, the ALJ found that plaintiff did not have an impairment
or combination of impairments that met or medically equaled the
severity of any listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform light work as defined in 20 C.F.R. § 404.1567(b)
except that he could not reach overhead or perform repetitive tasks
with the right arm. At step four, the ALJ found that plaintiff
could not perform past relevant work. At step five, the ALJ found
that considering plaintiff’s age, education, work experience, and
RFC, there

were

jobs

existing

in

significant

numbers

in

the

national economy which plaintiff could perform. Accordingly, he
found that plaintiff was not disabled.

2

IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

RFC Finding; Development of the Record

Plaintiff

contends

that

the

ALJ

erred

in

determining

plaintiff’s RFC without the benefit of any medical source statement
regarding plaintiff’s work-related limitations. The Court agrees.
As the ALJ acknowledged in his decision, “the record does not
contain

any

opinions

from

treating

or

examining

physicians

indicating that [plaintiff] is disabled[.]” T. 18. In fact, the
record contained no opinions from treating or examining sources,
whatsoever, as to the effect of plaintiff’s medically determinable
impairments on his ability to work.
The only medical source opinion evidence in the record is a
psychiatric review technique (“PRT”), completed by a non-examining,
reviewing

state

agency

psychiatrist

Dr.

J.

Echevarria,

which

concluded that there was “insufficient evidence for [the relevant
time] period to make a disability determination.” T. 214. The PRT
was completed in January 2012. However, the record indicates that
3

at least two significant records relating to plaintiff’s mental
health

treatment,

which

included

notes

from

hospitalizations

spanning a week in July 2009 and almost a month in February-March
2010, were not received by the Administration until June 2012. Both
of those hospitalizations related, in part, to treatment for mental
health impairments. Thus, it is apparent from the record that
Dr.

Echevarria

did

not

have

plaintiff’s

full

medical

record

available for review.
The regulations provide that although a claimant is generally
responsible for providing evidence upon which to base an RFC
assessment,

before

determination,

the

the
ALJ

Administration
is

“responsible

makes
for

a

disability

developing

[the

claimant’s] complete medical history, including arranging for a
consultative

examination(s)

if

necessary,

and

making

every

reasonable effort to help [the claimant] get medical reports from
[the

claimant’s]

own

medical

sources.”

20

C.F.R.

§

404.1545

(emphasis added) (citing 20 C.F.R. §§ 404.1512(d) through (f)).
Although the

RFC

determination is

an

issue

reserved

for

the

commissioner, “an ALJ is not qualified to assess a claimant's RFC
on the basis of bare medical findings, and as a result an ALJ's
determination of RFC without a medical advisor's assessment is not
supported by substantial evidence." Dailey v. Astrue, 2010 WL
4703599, *11 (W.D.N.Y. Oct. 26, 2010) (emphasis added) (quoting
Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio
2008)).
4

Here, the ALJ had no medical source opinions on which to rely
in formulating his RFC finding. As such, his RFC determination
constituted

an

impermissible

interpretation

of

bare

medical

findings. See Cyman v. Colvin, 2015 WL 5254275, *7 (W.D.N.Y.
Sept. 9, 2015) (remanding where ALJ came to RFC determination
without the benefit of any medical source statement as to both
mental and physical impairments); Hernandez v. Comm'r of Soc. Sec.,
2015 WL 275819, *2 (N.D.N.Y. Jan. 22, 2015) (remanding for ALJ to
obtain opinion of treating physician or other medical source)
(citing McBrayer v. Sec'y of Health and Human Servs., 712 F.2d 795,
799

(2d

Cir.

1983));

Gross

v.

Astrue,

2014

WL

1806779,

*18

(W.D.N.Y. May 7, 2014) (remanding where the ALJ determined a
claimant's RFC “primarily . . . through her own interpretation of
various

MRIs

and

x-ray

reports

contained

in

the

treatment

records”); Dailey, 2010 WL 4703599, at *11; Haskins v. Astrue, 2010
WL 3338742, *5 (N.D.N.Y. Apr. 23, 2010), report and recommendation
adopted, 2010 WL 3338748 (N.D.N.Y. Aug.23, 2010) (remanding where
“[t]he ALJ failed to re-contact Plaintiff's treating physicians,
failed to obtain an SSA consultative examination, and failed to
request the opinion of a medical expert”).
This case is therefore remanded for proper consideration of
plaintiff's RFC in accordance with the regulations. On remand, the
ALJ

is

opinions

directed
as

to

to

contact

plaintiff's

plaintiff's
mental

and

treating
physical

sources

for

functional

limitations during the relevant time frame (December 13, 2006 [the

5

alleged onset date] through December 31, 2010 [the date last
insured]), and to order consulting opinions as necessary. The Court
notes that “[t]he RFC assessment must first identify [plaintiff’s]
functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis, including
the

functions

in

paragraphs

(b),

(c),

and

(d)

of

20

C.F.R.

[§§] 404.1545 . . . Only after that may RFC be expressed in terms
of the exertional levels of work, sedentary, light, medium, heavy,
and very heavy.” Soc. Sec. Ruling (“SSR”) 96–8p (July 2, 1996).
Having found remand necessary on this ground, the Court
declines to address plaintiff’s argument challenging the ALJ’s
application

of

the

grids.

Because

the

record

on

remand

will

“necessarily be altered” upon its further development, see Crowley
v. Colvin, 2014 WL 4631888, *5 (S.D.N.Y. Sept. 15, 2014), the ALJ’s
analysis of the substantial evidence of record will be altered as
well. Upon redetermination of plaintiff’s RFC, the ALJ should
reevaluate whether vocational expert testimony may be necessary in
order to properly determine plaintiff’s ability to perform jobs
existing in the national economy.
B.

Step Two Finding

Plaintiff contends that the ALJ erred in failing to find his
diagnosis of depression to be a severe impairment. An impairment is
considered “severe” under the regulations if it “significantly
limits [the plaintiff’s] physical or mental ability to do basic
work activities.” 20 C.F.R. 404.1520(c). Specifically with regard
6

to mental impairments, a “special technique” applies at step two
requiring the ALJ to consider whether the plaintiff has a medically
determinable

impairment,

and

if

so,

to

rate

the

degree

of

functional limitation associated with that impairment in terms of
the four domains of functioning (activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of
decompensation).
The ALJ in this case considered evidence of a hospitalization
in which plaintiff was admitted from November 14-21, 2007. The
record reflects that plaintiff was admitted involuntarily on that
occasion for depression, after expressing suicidal ideation to his
marriage counselor. After this hospitalization, according to the
ALJ’s summarization of plaintiff’s testimony, “plaintiff saw his
primary

care

psychiatrist,

physician
but

for

depression,

[plaintiff]

did

not

who

recommended

think

he

needed

a
a

psychiatrist and did not follow-up.” T. 14. The ALJ then found that
plaintiff’s

depression

was

not

severe,

stating

simply

that

plaintiff’s “depressive disorder did not last the required 12
months,” and “[t]herefore, it [was] not severe.” Id. The ALJ also
noted

that,

in

January

2012,

the

reviewing

state

agency

psychiatrist found that there was insufficient evidence upon which
to base a disability determination.
The ALJ’s step two analysis of plaintiff’s depression was
erroneous because it failed to fully consider plaintiff’s complete
medical history. First, as noted above, the ALJ’s reliance on

7

Dr. Echevarria’s PRT was misplaced, since the record establishes
that Dr. Echevarria did not have all of plaintiff’s medical records
available for review. Second, the record reveals that plaintiff was
hospitalized more than once in relation to mental health symptoms.
In fact, he was hospitalized again for a week in July 2009, and
then for almost a month from February 14, 2010 through March 5,
2010.

Both

of

those

subsequent

hospitalizations

involved

psychiatric treatment and diagnoses. However, the ALJ did not
consider plaintiff’s two subsequent hospitalizations in relation to
plaintiff’s mental health treatment, but instead characterized
these hospitalizations as involving treatment for alcoholism alone,
and

found

that

the

“objective

record

[did]

not

establish

significant limitations resulting from [plaintiff’s] alcoholism.”
T. 15.
Records reflect that plaintiff’s July 2009 hospitalization was
associated with alcoholism, depression, electrolyte imbalance, and
pancreatitis likely due to alcohol abuse. His family reported that
he had been behaving as though he was hallucinating, and plaintiff
stated that he had been taking prescription medication which had
been prescribed by a veterinarian for his dog, in order to “help
him sleep.” T. 246. During his hospitalization, plaintiff was
diagnosed with alcohol abuse and depressive disorder, and his
insight and judgment were noted to be poor.
Notes

of

plaintiff’s

February-March

2010

hospitalization

indicate that he was admitted for alcohol withdrawal associated

8

with abuse, delerium tremens, pancreatitis, and depression. During
his

admission,

he

was

given

four

mental

health

examinations

(“MSEs”), all of which indicated various abnormalities. Plaintiff’s
status on MSE improved over the course of his stay; however, his
final GAF score, on March 2, 2010, was 50, indicating serious
symptoms. See American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (“DSM–IV”), at 34 (4th ed.
rev. 2000).
As is apparent from the Court’s review, the record contains
significant

evidence

relating

to

plaintiff’s

mental

health

impairment which was not considered by the ALJ at step two. This
evidence indicates that plaintiff’s depression may have lasted the
requisite time period, contrary to the ALJ’s finding. Moreover, the
ALJ’s step two error is particularly significant because the ALJ’s
decision

reflects

no

application

of

the

“special

technique”

required by the regulations. See Ornelas-Sanchez v. Colvin, 2016 WL
374042, *1 (2d Cir. Feb. 1, 2016) (“It is mandatory that the ALJ's
written decision reflect application of the technique [described in
20 C.F.R. § 404.1520a]; the decision must include a specific
finding as to the degree of limitation in each of the functional
areas described in paragraph (c) of this section.”) (internal
quotation marks omitted).
On remand, the ALJ is directed to apply the special technique
to his step two analysis of plaintiff’s mental health impairments
during the relevant time period. Additionally, as with any case
9

containing significant evidence of alcoholism, the ALJ must also
consider at step two the severity of that condition. If that
impairment is determined to have been severe for the relevant time
period, the ALJ must proceed to consider whether the condition was
“a contributing factor material to the determination of disability”
in accordance with the requirements of 20 C.F.R. § 404.1535.
V.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings (Doc. 11) is denied and plaintiff’s
motion (Doc. 8) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.

The Clerk of the Court

is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

February 22, 2016
Rochester, New York.

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